Can Employers Accept a Receipt for a Replacement Document for I-9 Purposes?

Let's say your U.S. business has hired a new employee, but that person is unable to finish filling out the required federal I-9 form, having lost key documents such as their driver's license, Social Security card, and/or passport. (Although losing all such documents is uncommon, it could happen because of, say, a stolen wallet or a home fire or burglary). Your employee brings you a document from the Department of State showing that they applied to get a new passport. Do you have to terminate the person's employment and rehire them once their various documents arrive, or can the employee work while awaiting the passport?

As explained below, your new employee can work in a situation such as this.

I-9 Rules Allow Accepting a Receipt for a Lost, Stolen, or Damaged Document

For I-9 purposes, U.S. employers are allowed to accept a receipt for an official application to replace a lost, stolen, or damaged document. The receipt only works for a maximum of 90 days, though. After that, your employee will need to present an original document or documents.

The important rules to remember in this situation are:

• the document must have been lost, stolen, or damaged (a receipt for an application to merely renew an expired document will generally not suffice*)
• the receipt must be an actual receipt, not just a printout confirming the individual's information (the Social Security Administration sometimes issues SSN printouts that employees will try to present as receipts)
• the lost, stolen, or damaged document must be an acceptable I-9 document per the U.S. government's standards, and
• you must make a calendar note to follow up with the employee within 90 days to review the original document(s).

*Note that in certain situations, foreign nationals may continue to work for an employer based on having filed an application with U.S. Citizenship and Immigration Services (USCIS) to extend their lawful immigration status. You should confirm that the document is acceptable and confer with your immigration counsel regarding proper I-9 completion prior to accepting a receipt for such a petition.

What Happens After 90 Days of Showing the Receipt?

Attorneys disagree about whether the employee must present the actual replacement document at the end of the 90-day period (or may instead present a different I-9 document). In the situation described above, an employee who did not receive the replacement passport before the end of the 90-day period might wish to present a new driver's license and Social Security card to the employer.

According to USCIS guidance, the employee should not be allowed to do so. However, many attorneys disagree, citing concerns about discrimination claims. As such, you should speak with an attorney if you face such a situation so that you understand the risks of accepting or not accepting alternative documentation.

USCIS also indicates that the employee may not present another receipt at the end of the 90-day period; the employee is required, at that point, to present an original document. Again, attorneys might disagree about whether employers face more risk by following this guidance or by accepting a second receipt. Speak with an attorney in your area if you face this type of situation and are unclear about how best to proceed.